Mahan v. Berry, 5 Mo. 21

McGirk, Judge, delivered the opinion of the court. Mahan brought an action of slander against Berry, for-charging him with s wearingjfalsely before certain arbitrators in a matter submitted to them, wherein Mahan and Berry were parties. It appeared by the evidence that Mahan and Berry had some matter of difference, which they submitted to certain arbitrators verbally, without the sáme being made a rule of court, or in any other manner being a judicial proceeding, but that the same was voluntary and extra judicial. The plaintiff proved the speaking -of the words.

It appeared, also, that on this arbitration, Mahan was sworn by a justice of the peace to give evidence, and that he did give evidence, and the evidence so given, Berry charged was false, and in that behalf the plaintiff committed perjury. On the trial of the cause in the Cooper circuit court, the plaintiff asked the court for several instructions, which were refused; the defendant then asked the court to instruct the jury that .if they believed all the evidence of the plaintiff to be true, that, by law, they must find for the defendant, which instruction the court gave, whereon the jury found for the defendant.

The instruction refused for the plaintiff and that given for the defendant are complained of as error. Some of the plaintiff’s testimony was x-ejected. But as I consider the plaintiff could not recover if his rejected testimony had been received, I deem the discussion of that matter of no value. The question made by the record is, 1. Whether perjury can be charged so as to make the charge actionable a case like the present?

The defendant’s counsel ins¡st that the arbitration was extra judicial, and of course °ath administered by the justice was what the law calls a voluntary oath, for the falsity of which an indictment for perjury will not lie. I understand the oath administered in the case to have been precisely of that description. . 0f°court, Ts* not a judicial oath Tnor ltB f?1-gafptrjury.U 6 °" Hence, to charge ? P®rson Wlth false[y on an occasion is not actionable, The proceeding was extra judicial, and the oath voluntary. To prove the justice had power to administer this oath, Mr.

Hayden has referred the court to the statute on the subject of oaths — Digest, 1825, page 603. In

section 3d of the act, it is enacted, among other things, “ That all justices of the peace, respectively, shall have power to administer oaths and affirmations to witnesses and others, concerning any thing depending, or proceeding commenced, or to be commenced, betore them.” And then again the act says: “The justices shall repectively have power to administer oaths of office, and other oaths required to be taken before entering upon the discharge of the duties of any office, appointment, place, or business, or any other lawful occasion, and to take affidavits concerning any matter or thing, process or proceedings, depending or to be commenced, in any court, or before any justice of the peace, or on any occasion where such affidavits or depositions are authorized bylaw to be taken, ” &c.

There is nothing in the

section which authorizes the justice to administer any oath unless in cases where the law requires such oath to be taken. The act respecting arbitrators has also been relied on, to show the authority to administer the oath in this case — Revised Code, 1825, 1837. The first

section of that only recognizes two cases in which arbitrations can be made a judicial proceeding, the first is where the parties have a matter in dispute lor which there is no remedy but by action at law; in such case they may make their submission before suit brought, by a rule of court, and then the matter becomes judicial, and where a suit is brought the parties may submit to arbitration. The case at bar is neither of those cases, consequently it is extra judicial, and the oath unauthorized; consequently the instruction of the court was right. The judgment of the circuit court ought to be affirmed.